USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 133 of 150
sharp and dramatic lack of fit between means and ends as to suggest that no such purpose was intended”).
Fourth, and finally, evidence in the record that cisgender students were permitted to use the gender-neutral bathrooms further undermines any notion that there is an “exceedingly persuasive” connection between the School District’s privacy interest and its policy banning transgender students from the bathrooms that align with their gender identities. Nguyen, 533 U.S. at 70 (internal quotation marks omitted). BCPS official Kefford and task force director Smith both testified at trial that gender-neutral, single-stall bathrooms had long been used by cisgender students who needed “extended,” or “additional privacy.” Doc. 161 at 101–02, 149. Based on this testimony, the district court found—and the majority opinion does not dispute—that the gender-neutral bathrooms were a way to “accommodate[] the occasional student who needed additional privacy” for any number of reasons. Doc. 192 at 15 n.20 (emphasis added). The fact that, by the School District’s own admission, the gender-neutral single-stall bathrooms provide more privacy than the bathrooms that separate students by biological sex undermines the District’s asserted privacy interest in keeping transgender students from the bathrooms that align with their gender identities because their inclusion might theoretically create privacy problems for a cisgender student who is, for example, “undress[ing] or clean[ing] up a stain on their clothing.” Doc. 161 at 248; cf. Hogan, 458 U.S. at 730–31 (explaining that school’s policy of permitting men to attend all-women’s nursing school classes as auditors
